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IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 116 OF 2008

HOLDEN AT LUSAKA
(Civil Jurisdiction)

BE TWE E N:

CHRISMAR HOTEL LIMITED APPELLANT

AND
CAVMONT INSURANCE CORPORATION LIMITED RESPONDENT

CORAM: Chirwa, Silomba and Chibomba, JJS

On the 16th February and 21st September, 2010

For the appellant: Mr. P. Chungu of Ranchhod, Chungu Advocates

For the Respondent: Mr. S. Lungu and Ms. N. Nachalwe of Shamwana and
Company

J U DGM EN T

SI LOMBA, JS, delivered the judgment of the Court.

Cases referred to:-

1. Nkhata and Four Others -Vs-The Attorney General (1966} ZR, 147.
2. Justin Chansa -Vs- Lusaka City Council, SCZ Appeal No. 29 of 2007.
3. Attorney General -Vs- Kakoma, (1975} ZR, 212.
4. Maamba Collieries -Vs- Godfrey Mudenda Ng'andu, SCZ Appeal No. 8 of 2005.

In this appeal, the Appellant is appealing against the judgment of the High
Court dated the 16th of April, 2008 in which the learned trial Judge, sitting at
Lusaka, dismissed claims for US $250,000.00 and loss of business in the sum of
K8,350,000.00 from the Respondent, as the insurer of the Appellant's bus,
following a road traffic accident in which the bus was damaged.
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The facts not in dispute were that on the 4th of May, 2005 the Appellant
and the Respondent signed a contract of insurance for the insurance of the
Appellant's fleet of buses in which the Respondent undertook to indemnify the
Appellant in the event of an accident, loss and/or damage to the insured buses.
On the 2i h of June, 2005, a scania marcopolo bus Registration No. ABC 7883 was
involved in an accident with another vehicle and the Appellant's bus was
extensively damaged in the accident. Following the accident, the Appellant
lodged a claim with the Respondent, which the latter refused to honour on the
ground that the bus was being driven by an unlicensed person at the time of the
- accident.
To support the claims against the Respondent, the Appellant called three
witnesses, whose statements are part of the record of appeal. The first witness
was Harry Vaiden Findlay (PWl), the Appellant's Managing Director. His position
in the witness statement confirmed the existence of an insurance policy with the
Respondent covering the Appellant's fleet of buses against loss of, or damage to
any of the insured buses. According to the insurance policy, the bus, registration

(f No. ABC 7883, was insured for US $250,000.00.

He deposed that on the 2i h of June, 2005 the bus, the subject of the
9 proceedings, was involved in a road traffic accident in Solwezi. Consequently,
PWl notified the Respondent and provided the requisite documentation to
facilitate the settlement of the claim. PWl deposed that despite the Appellant
providing the requisite documentation for the processing of the claim, the
Respondent, in breach of its undertaking to facilitate the settlement of the claim
within fourteen working days, did not settle the Appellant's claim.
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PWl further deposed that on the 10th of April, 2005, the Respondent wrote
the Appellant for a police report on Form 75A instead of an earlier police report
from the Zambia Police in Solwezi, which it found to be unacceptable. PWl also
disclosed in his witness statement that in September, 2005 he was shocked to
hear that the Appellant's driver, Simon Chulabantu, had been detained by the
police on a charge of manslaughter for giving an unauthorized person, namely,
Simon Phiri, to drive the bus that was involved in the accident. According to PWl,
he was shocked to hear that because Simon Phiri held a valid PSV driving licence
as an employee of the Appellant and as an Assistant to Chulabantu.
PWl further deposed that he was later told by Chulabantu that he had
been taken by the police to Ngonga Motel in Solwezi where he was tortured and
made to sign a police statement to the effect that he (Chulabantu) was not the
driver of the bus at the time of the accident. With this development, PWl
became suspicious, in particular that the investigations were being conducted by
police officers from Lusaka. His suspicion was confirmed when the Respondent
produced a police report dated the 4th of October, 2005 confirming that the driver
of the bus at the time of the accident was Simon Phiri, thereby contradicting the
earlier police report which indicated that Simon Chulabantu was the driver.
9 When PWl was cross-examined he testified that if the driver was not
licensed the Respondent would not be liable. He reiterated his earlier evidence
in the witness statement that Simon Phiri had a valid driver's licence and when
he was shown Simon Phiri's PSV licence the witness said that he did not know
what Class 'C' licence stood for. His testimony was that he was not aware that
Class 'C' PSV licence did not entitle Simon Phiri to drive a marcopolo bus but light
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trucks and small mini buses. Further, that he did not know that, that type of bus
fell in category 'CE' and whether Simon Phiri was not licensed to drive it.
The witness's testimony was that he sent one of his workers to the scene of
the accident; that while there he was not told who was driving the bus at the
time of the accident and that the police report he received did not indicate that
Simon Phiri was the driver but Simon Chulabantu. PWl conceded that the
Respondent was �ntitled to undertake its own independent investigations on the
accident. He also conceded that there was a possibility that Simon Phiri could
have driven the bus at the time of the accident.
The second witness for the Appellant was Eddie Kaumba Samakayi (PW2),
Principal Officer and Chairman of Fidelity Insurance Brokers Limited. His
evidence in chief, as contained in his witness statement, was that he acted as an
insurance broker for the Appellant to negotiate terms of insurance policies with
respective insurance companies and to attend to all insurance related matters,
including processing and handling of all insurance claims on behalf of the
Appellant.

e With regard to the difficulties the Appellant had in securing payment,

PW2 deposed that the request from the Respondent for the Appellant to provide

- it with a police report on Police Form No. 75A was neither in line with insurance
policy conditions nor was it specified in the insurance policy agreement entered
into between the two parties; that it was not standard practice to limit and
restrict the submission of a police report only on Form No. 75A for insurance
claims. As far as PW2 was concerned, the police report submitted by the
Appellant to the Respondent on the 14th of July, 2005 contained all the requisite
information necessary to complete the claim settlement.
 JS

PW2 further disclosed in his statement that in an attempt to resolve the

issue he and PWl met Mr. Chimamu, an employ�e of the Respondent, on the 22 nd
of August, 2005 who assured them that the Respondent would respond to their
request in due course but it failed to do so. At this stage the Respondent never
pointed out to PW2 or to the Appellant that there were irregularities in the police
report sent to it on the 14th of July, 2005 by the Appellant or that the information
the Appellant provided was inconclusive. In the circumstances, PW2 could not

e understand the basis for the Respondent's procrastination as the insurance policy
did not require a declaration by the Appellant of any specific drivers for any of its
insured buses.
When PW2 was cross-examined, he testified that he was engaged at the
point when the Appellant failed to get a response from the Respondent insurance
company. He conceded that sometimes there were delays in settling claims and
that it was not unusual for an insurer to fail to settle a claim within fourteen
working days provided a reason was given for the delay.
In his witness statement, Simon Chulabantu (PW3), the driver employed by

9 the Appellant, stated that after loading passengers on the 2th of June, 2005 he
drove a scania marcopolo bus, Registration No. ABC 7883, from Solwezi bus stop
9 to Lusaka in the company of Simon Phiri (co-driver) and Alfred Chewe, conductor.
When PW3 reached a curve near Solwezi River bridge, a collision occurred
involving his bus and a Leyland bus, Registration No. ACH 1404, which was coming
from the opposite direction. Thereafter, PW3 was unconscious and only woke up
in Kitwe General Hospital with a lot of pain as a result of serious head and chest
injuries. While he was still in Kitwe General Hospital, PW3 gave a statement to a
police officer from Solwezi Police Station on the th of July, 2005 and on the 13th
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of July, 2005 he reported to Solwezi Police Station where he was arrested and
charged with the offence of causing death by dangerous driving.
PW3 further stated in his witness statement that when he returned to
Solwezi he attended an identification parade where a lady passenger identified
him as the driver of the bus that was involved in the fatal road traffic accident. He
later came to know the lady by the name of Ziyaye, a police officer. The witness
deposed that on �he 13th of August, 2005, while in Solwezi, he made another
statement to the police and was later interviewed by police officers from Lusaka
who did not believe that he was the one who drove the bus when the accident
occurred. According to PW3, the police officers thereafter drove him around
Solwezi town in a vanette, beat him up and took him to Ngonga Motel where he
was again beaten by the same police officers who wanted him to say that he was
not the one who drove the bus. Because he was afraid of the police, he decided
to agree by signing the statement the police officers prepared.
When PW3 was cross-examined, he testified that at the time of the
accident Simon Phiri, his co-driver, was seated behind him on the staff seat. He

9 testified that when he came out of the hospital he was told that Simon Phiri and
the conductor had died in the same road accident. PW3 could not understand
tit how he survived when Simon Phiri, who sat behind him and the conductor who
sat on his left hand side died. He pointed out that there was no seat belt in the
bus and that he held on the steering as he drove the bus.
With regard to the state of the bus, PW3 testified to the trial Court that
when he was shown the bus he noticed that its top part was bent on the driver's
seat where there was more impact. PW3 denied that Simon Phiri drove the bus at
the time of the accident. Responding to another question, the witness testified
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that he could not understand how the police could write two statements, one
saying that he was driving the bus and the other saying Simon Phiri was the driver
of the bus.
To rebut the evidence of the Appellant, the Respondent called four
witnesses whose statements are part of the record of appeal. The evidence in
chief of Inspector Ziyaye Mwaziona (DWl) of Solwezi Police Station, as contained
in her witness statement, was that she boarded the bus belonging to the
Appellant, bearing Registration No. ABC 7883, on the 2ih of June, 2005. Before
the bus started off, DWl saw a middle aged man sitting in the driver's seat and

4) revving the engine of the bus. After a short while, DWl saw a young man sit in
the driver's seat who began to drive the bus towards Lusaka.
DWl further deposed in her statement that when the bus passed the
Solwezi Social Club the driver of the bus failed to negotiate a corner and the bus
was involved in an accident; that the young man who drove the bus died as a
result of the accident. DWl later came to know who Simon Chulabantu was and
she stated with certainty that he was not the one that drove the bus from Solwezi

9 to the point of the accident.

In cross-examination, DWl testified before the trial Court that she was not
II aware of a report alleging that she (DWl) received a share of K34 million from the
management of Zoom Roadways Transport. She testified that on the 26th of July,
2005 there was an identification parade at Solwezi Police Station at which she
identified Simon Chulabantu. She further testified that she did not mention the
name of Simon Phiri as the one who drove the bus when investigators from
Lusaka visited Solwezi. She also testified that she did not know the name of the
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driver when she got on the bus and that she did not tell the team of investigators
that the driver was a conductor aged twenty years.
Clement Mumba (DW2), a Detective Inspector with Zambia Police in
Lusaka, stated in his witness statement that he was part of a team of police
officers that travelled to Solwezi to carry out thorough investigations aimed at
establishing who drove the bus of the Appellant, Registration No. ABC 7883, at
the time of the �ccident; that after interviewing many people they ended up
interviewing Simon Chulabantu, who was in charge of the bus at the material time
and he confessed that he was not the one who drove the bus at the time of the

� accident but one Simon Phiri; that from their investigations and interviews with
Simon Chulabantu the team established that Simon Phiri was twenty years old
and that he died behind the wheel of the bus.
Upon his return to Lusaka, DW2 inspected the damaged bus and from his
observations he stated with certainty that the damage was such that it was highly
improbable that the driver could survive the accident as the impact pushed the
entire engine back to the driver's position. When DW2 was cross-examined, his

e testimony was that he and other police officers were accommodated at Ngonga
Motel at the expense of the Respondent.
4f DW2 testified further that Inspector Ziyaye (DWl) gave him the description
of Simon Phiri following which he took a statement from her. He also testified, by
way of repetition, that he interviewed Simon Chulabantu at Ngonga Motel and
took a statement from him after he was warned and cautioned.
The evidence of Jack Muke Kamau (DW3), as contained in his witness
statement, was that as a senior underwriter he issued to the Appellant a
commercial policy number 080.32.0015.05 on the 4th of May, 2005 covering eight
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scania buses, including the one that was involved in an accident on the 2ih of
June, 2005. The policy provided indemnity to the Plaintiff for its fleet of buses
subject to the terms, conditions and exceptions contained in the policy.
DW3 deposed that following the accident on the 2ih of June, 2005, the
Respondent was notified verbally and in reaction to the information the
Respondent dispatched its staff to Solwezi to go and obtain a police report and
first hand information on the circumstances surrounding the fatal accident. He
disclosed that on the 4th of August, 2005 the Respondent received a claim form
from the Appellant stating that the driver of the bus at the material time was

e Simon Chulabantu; that the information was contrary to what the police had
stated to the Respondent's staff while in Solwezi and that on the 4th of October,
2005 the Respondent received a letter from the Appellant's advocates. The
reaction of the Respondent was to deny liability under the policy on the ground
that an unlicensed driver drove the bus contrary to the conditions and terms of
the policy.
The evidence contained in the witness statement of Andrew Ackim
Chinyimba {DW4), Deputy Road Traffic Commissioner at the time, was that on the
23rd of August, 2005 his office received a complaint from the Respondent that
there were contradictory reports on the road traffic accident in Solwezi involving
the Appellant's bus, Registration No. ABC 7883. Consequently, DW4 assembled a
team of police officers that included DW2. From the initial investigations DW4
personally conducted from the licensing records, it was revealed that Simon
Chulabantu had a valid PSV licence while Simon Phiri possessed no PSV licence.
DW4 and his team left for Solwezi on the 28th of August, 2005 where they
interviewed many people. The interviews revealed that Simon Phiri, the
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conductor aged twenty years, drove the bus on the fateful day. DW4's team also
interviewed DW1, a passenger on the bus, who confirmed to them that the bus
was driven by a young man fitting the description of Simon Phiri. Their further
interview with Simon Chulabantu also confirmed that he was not the one who
drove the bus.
With the foregoing evidence before him, the learned trial Judge went
through the entire_evidence on record, the skeleton arguments, authorities cited
to him by the parties and the written submissions of counsel. From the evidence
on record, the learned trial Judge found that it was common cause that there was
a valid insurance contract between the parties which covered, among others, the
scania marcopolo bus belonging to the Appellant, whose registration number was
ABC 7883. He also found that it was incontrovertible that the bus was extensively
damaged in a road traffic accident in Solwezi on the 27th of June, 2005.
From the written submissions, including skeleton arguments, the learned
trial Judge found that the Respondent's defence hinged on Clause (b) (ii) of the
insurance policy under the general exceptions, which absorbed the Respondent

e insurance company from liability where an insured vehicle was not being driven
by a duly and fully licensed driver. The controversy, according to the learned
41 Judge, appeared to be which driver drove the bus at the time of the accident,
considering that there were two police reports, one suggesting that the driver of
the bus was not a fully licensed PSV driver and the other one showing that he was
a fully licensed PSV driver. As far as he was concerned the success or failure of
the case of the Appellant wholly hinged on this as it was at the heart of the case.
He went through the evidence of the Appellant, especially the evidence of
PW3, who testified that he was the one who drove the bus while Simon Phiri, his
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co-driver and who died in the accident, sat behind him on the staff seat. As an
employee of the Appellant, the learned trial Judge found that PW3 had an
interest to serve: he also found his evidence to be flawed in that a person who sat
behind him died and another Afred Chewe, a conductor, who sat on his left hand
side also died while himself survived the accident.
The learned trial Judge had occasion to visit, during trial, the damaged bus
in the company oy the parties, including PW3. When PW3 was later cross­
examined, he told the trial Court that he noticed that the top part of the bus was
bent on the driver's seat where there was more impact. The learned trial Judge
e found that PW3's assessment of the impact was in line with what he saw and
noted. He went further and opined that according to his perception it was
inconceivable that anyone sitting in the driver's seat could have survived, even by
any stretch of imagination. The learned Judge's reasoning was supported by the
evidence of DW2, who also inspected the bus, and stated with certainty that the
damage was such that it was highly improbable that the driver survived as the
impact pushed the entire engine back to the driver's position.

e With the foregoing analysis of the evidence, the learned trial Judge was of
the view that the evidence of PW3 that he could not understand how he survived
9 (when Simon Phiri who sat behind him died) was nothing but mere sophistry; that
it was a red herring intended to mislead the trial Court; that there was nothing
miraculous about his survival in the accident because he was not in the driver's
seat. He concluded with a finding that PW3 was not the driver of the bus at the
time of the accident. This was after he had taken into account the evidence of
DWl, whom he described as an independent, reliable and truthful witness who
was a passenger in the bus and saw a young man step into the driver's seat, drove
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off the bus but failed to negotiate a corner resulting in a fatal accident in which he
died.
On the evidence, the trial Court found that the driver of the bus at the time
of the accident was Simon Phiri. Phiri's driving licence, tendered before the trial
Court, was scrutinized by the learned trial Judge who found that the driving
licence was issued to the deceased under Code 'C' when he was twenty years old.
In terms of Section 116 (1) (c), especially sub-section (3), of the Road Traffic Act,
Chapter 464, the learned trial Judge found that the late Phiri was not twenty-one
years at the time he was issued with PSV driving licence; that his licence was void

- ab initio and that he had no valid licence authorizing him' to drive the Appellant's
marcopolo bus. In the circumstances, the learned trial Judge found that the
accident fell within the exception pleaded by the Respondent.
On the whole, the learned trial Judge found that the Respondent was
absorbed of liability and dismissed the Appellant's claims.
The appeal to this Court is premised on the ground that the learned trial
Judge misdirected himself in law and fact when he found that the motor vehicle
e involved in a road traffic accident on the 2t h of June, 2005, being a scania
marcopolo bus, Registration No. ABC 7883, was being driven by Simon Phiri and
9 not Simon Chulabantu and that the evidence on record shows this fact.
Both parties filed written heads of argument, which were reinforced by the
oral submissions by counsel. Arising from the only ground of appeal, the issues
enumerated in the memorandum of appeal which were repeated in the
Appellant's heads of argument, were:-
(i) There was a police report on record which confirmed the identity of the driver
as Simon Chulabantu;
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(ii) The report which the Court elected to rely on was made much later in time to
the one that the Court and that the Court never gave a reason for disregarding
the earlier report;

(iii) The evidence of DW1 and the report that she made to her Officer-in-Charge
was only compiled on 31 st August, 2005, many weeks after the accident and did
not therefore give a reliable account of the events;

(iv) The reliance on the evidence of DW1 was despite the testimony of DW4
showing that she was corrupt and had in fact been disciplined by demotion in
her rank;

(v) The Court's conclusion that the driver of the bus at the time of the accident
could not have possibly survived was not supported by any evidence and that
the visual examination of the bus was not sufficient evidence AND FURTHER
when the Court inspected the bus it was not in the state that it had been
immediately after the accident occurred;

(vi) That the account of DW2 that it was highly improbable for the driver to have
survived the accident was an opinion rendered by a person not competent to
give one and that this part of DW2's testimony was in fact expunged from the
record by order of the Court;

(vii) Simon Chulabantu was actually charged with the offence of causing death by
dangerous driving showing that he was indeed the driver of the bus;

(viii) DWl clearly told a lie when she testified that she attended an identification
parade in a case where PW3 was charged with permitting an unlicensed driver
to take charge of a motor vehicle and that PW3 was charged and appeared in
the High Court on that charge when in fact not;

(ix) Simon Phiri when in fact the persons that were purporting to have confirmed
that likeness had never met or seen Simon Phiri at all.

The Appellant submitted in the heads of argument that the main thrust of
the decision of the trial Court was that liability would be ascribed based on the
fact of who was driving the motor vehicle at the time of the accident. From the
learned trial Judge's finding, the Appellant thought that he was correct when he
said, in his judgment, that "there appeared to be controversy regarding the
driver of the bus at the time of the accident as can be discerned from the two
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contradicting police reports. As I see it from the facts, the success or failure of
the Plaintiff's action wholly hinges on this issue as it is at the heart of the case."
The Appellant submitted that the trial Court proceeded to find, as a fact,
that PW3 was not the driver of the bus at the time of the accident and that this
was the finding the Appellant wished to challenge. The Appellant was alive to the
fact that this Court rarely interferes with findings of fact of a lower Court, unless
as stated in the case of Nkhata and Four Others -Vs- The attorney General. (ll

The Appellant submitted that this was a proper case in which the Appellate
Court could interfere with the lower Court's finding of fact. The Appellant's first

It argument, arising from the principles enunciated in the Nkhata (ll case, was that
by reason of some non direction or misdirection or otherwise the learned Judge
erred in accepting the evidence which he did accept.
The Appellant submitted that in making the finding of fact that PW3 was
not the driver of the bus at the time of the accident the learned trial Judge
accepted the evidence of DWl which he found to be more reliable and truthful as
she was an independent witness with no interest to serve. As far as the Appellant
was concerned, this was an erred conclusion that the Court made and that to out­
rightly accept DWl as a truthful witness with no interest to serve was a
misdirection.
The Appellant further submitted that the evidence of DW2 was that when a
team of investigators from Lusaka went to Solwezi the expenses for the trip and
investigation were borne by the Respondent; that it was during the investigations
that DWl made a statement to the team from Lusaka. The view of the Appellant
was that this fact should have put the lower Court on guard and treat the
 JlS

evidence of DW1 with circumspection and not accept her (DW1) evidence as the
truth.
Secondly, it was submitted that in assessing and valuating the evidence, the
learned trial Judge had taken into account, or failed to take into account some
\

matter which he ought not to have taken. The Appellant submitted that there
were conflicting police reports on the accident, which the trial Court
acknowledged when r�viewing the evidence but gave no further consideration to
that question when adopting the testimony of DW1. It was submitted that the
report of K. Hambaza, Traffic Investigations Officer, was to the effect that PW3
was the driver at the time of the accident but the trial Court glossed over the
report and failed to take it into account in reaching his decision.
The Appellant, in the third place, submitted that it un-mistakenly appeared
from the evidence itself, or from the unsatisfactory reasons given by the learned
Judge for accepting the evidence that he could not have taken proper advantage
of his having heard and seen the witnesses. In the view of the Appellant, DW1
offered inconsistency in her testimony; that when she identified PW3 at an
identification parade she said that he was the one who allowed a young, slim dark
man to take charge of the vehicle; that the parade she attended was for the
offence of allowing an unlicensed person to take charge of a vehicle and that PW3
was in fact appearing in Court for the offence.
As far as the Appellant was concerned, the testimony was suspect. It
submitted that on the 26th of July, 2005, when the parade was held, the police
were already investigating the case of causing death by dangerous driving and the
suspect was PW3; that the position only changed when the report by the
investigating team from Lusaka rendered its report on the 14th of September,
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2005 and it did not occur to the learned trial Judge that DWl was already
assisting with investigations that had not technically commenced. It was,
therefore, clear, the Appellant submitted, that the learned Judge did not take
advantage of having seen and heard from DWl, who contradicted herself on a
material question.
On the fourth and last principle in the Nkhata (ll case, that states: In so far
as the Judge has relieq on manner and demeanuor, there are other circumstances
which indicate that the evidence of the witnesses which he accepted is not
credible, as for instance, where those witnesses on some collateral matter
deliberately gave untrue answer; the Appellant repeated the inconsistency of the
parade and submitted that DWl deliberately gave untrue answer, that is that
PW3 was being investigated for allowing a young man to take charge of the bus,
and ought to have been treated with circumspection. The case of Justin Chansa -
Vs- Lusaka City Council, ( 2 l was cited to us, where we lamented the failure of the
trial Court in failing to give reasons for ignoring certain evidence.
With the foregoing elucidation, we were urged to disturb the lower Court's
findings because the learned trial Judge failed to evaluate the evidence before
him and take advantage of observing witnesses who were before him; that failure
e to give reasons for rejecting the other evidence was fatal and ground for reversing
the decision of the learned trial Judge.
In his oral submission, by way of reply, counsel for the Appellant reiterated
what was contained in the heads of argument.
From the heads of argument in response, the Respondent submitted that
the learned trial Judge was on terra firma when he found for the Respondent
upon consideration of the facts and evidence presented before the trial Court.
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We were urged to uphold the learned trial Judge as there was no basis for
disturbing it. Coming to the only ground of appeal, the Respondent's position was
that it hinged on a finding of fact that the bus was being driven by Simon Phiri
who perished in the accident as opposed to Simon Chulabantu (PW3).
The Respondent conceded that there were conflicting stories advanced by
both sides in their respective pleadings, witness statements and oral testimonies
of witnesses on the, basis of which the trial Court was entitled to make findings of
fact. The case of Attorney General -Vs- Kokomo ( 3 l was cited to illustrate the point
we made in the case that "a Court is entitled to make findings of fact where the

9 parties advance directly conflicting stories and the Court must make findings on
the evidence before it and having seen and heard the witnesses giving that
evidence ---." We were urged not to disturb findings of fact, citing many cases,
such as, Maamba Collieries -Vs- Godfrey Mudenda Nq'andu (4l that "it is trite law
that in matters of findings of fact and questions of credibility the trial Court had
the advantage of seeing and hearing the witnesses, which this Court does not
have."
The Respondent submitted that the factual evidence of DWl and the only
-
possible conclusion the learned trial Judge came to, that Simon Phiri and not
e Simon Chulabantu was the driver of the bus at the time of the accident, could not
be considered to have been made in the absence of any relevant evidence nor
could it be argued that it was made upon a misapprehension of the facts and
neither could it be deemed perverse to warrant faulting it. In that regard, the
Respondent was of the view that the only ground of appeal had no merit and
should be dismissed.
 J18

The Respondent then dealt with the issues raised by the Appellant under
the only ground of appeal separately. We have gone through the Respondent's
arguments on all the nine issues raised by the Appellant. Our considered view is
that the arguments directly or indirectly tend to reinforce the Respondent's
argument under the only ground of appeal that the learned trial Judge properly
found that Simon Phiri drove the bus and perished in the accident and not Simon
Chulabantu. A summary of the submissions is likely to be a duplication on a
matter already outlined and to avoid falling into the same trap as the Respondent
did we shall not summarize the Respondent's submissions on the nine issues or
questions. We, however, reserve the right to revert to an issue discussed by the
Respondent if, by so doing, the interests of justice will be better served.
We have carefully considered the submissions in this appeal, including the
cases cited to us, the evidence adduced at trial and the well reasoned judgment of
the trial Court. From the submissions, the only issue in contention appears to us
to be: Was Simon Chulabantu or Simon Phiri the driver of the bus at the time of
the accident that occurred on the 2th of June, 2005 at Solwezi? Like the learned
trial Judge, we pose this question because if the driver is found to have been
Simon Chulabantu the case for the Appellant must succeed because the said
Simon Chulabantu was a qualified PSV driver and had in his possession a valid
driving licence that meets with the general exceptions of the insurance policy
under Clause (b) (ii). On the other hand, if Simon Phiri was driver the case for the
Appellant cannot be sustained as the uncontroverted evidence on record clearly
shows that the late Simon Phiri did not hold a valid PSV driving licence and,
therefore, not qualified to drive the scania marcopolo bus under Clause (b) (ii).
 J19

Like the learned trial Judge, we have followed the evidence of DWl with
keen interest. This is the witness the learned Judge found to be truthful, reliable,
independent and with no interest to serve. The learned Judge said this after
assessing her demeanour and credibility as she gave evidence in the witness box.
Apart from being a police officer, she was a passenger in the bus, having entered
the bus before it started off.
Her evidence was that a middle aged man took the driver's seat, started the
engine and revved it. When he left the driver's seat, DWl saw a young man take
over the seat and the bus started off. At a curve, the young man failed to control

9 the bus resulting in the fatal accident in which the same young man died. The
young man turned out to be Simon Phiri.
When DWl was cross-examined, she remained steadfast when she said
that the man who drove the bus up to the time of the accident looked younger
than Chulabantu. In our view, there was nothing ambiguous or inconsistent
about her evidence that PW3 was not the driver of the bus at the time of the
accident. Her evidence was an eye witness account of what happened and in this

e regard we find that the learned trial Judge was on firm ground to have discarded
the traffic report of Hambaza that showed that PW3 was the driver of the bus at
e the time of the accident. As we shall soon show, the traffic report of Hambaza
could not be relied on because it was not realistic.
Further, we find the evidence of PW3 indirectly supportive of the evidence
of DWl that he was not the driver at the time of the accident. After the accident,
PW3 described his survival from the accident as miraculous. He could not believe
that both Simon Phiri, who sat behind him in a seat reserved for staff and the
conductor who sat to his left hand side died. His attempt in saying that he was
 .. J20

the driver of the bus was, as an interested person, intended to improve the
chances of success of the case of his employer. However, this was not to be
believed by the learned trial Judge who appropriately described his evidence as a
fraud on the Court for the sole purpose of misleading the Court into believing that
he was the driver at the time of the accident when he was not the one. We,
therefore, agree with the lower Court that he survived because he was not in the
driver's seat.
Assisted by the evidence of DWl and DW2, the learned trial Judge was in a
position to entangle the conflicting evidence adduced by the parties with a visit to
the damaged bus. The visit was prompted by the application by the Respondent
to which no objection was raised by the Appellant. The visit by the trial Judge
had support under Order 29, rule 2(1} of the RSC which allows a Court to inspect
any property or thing forming the subject matter of the proceedings. At page 8,
paragraph 1-15, the learned authors of Phipson on Evidence state that-
"the Judge may, either on his own motion or at the request of counsel, ask witnesses
to assist the Court on the relevant matters, such as the position in which they
themselves or other persons or things had been at the material times, provided that
those witnesses are recalled to be cross-examined, if so required. A view at which
witnesses give demonstrations or answer questions is part of the trial and of the
evidence in the case."

e The evidence on record shows that when the learned trial Judge visited the
damaged marcopolo bus PW3 was there. The trial Court asked him questions to
obtain full information and evidence on whether his survival was miraculours.
After looking at the bus, and bearing in mind the evidence of DW2, on the
condition of the damaged bus, the trial Judge opined that it was inconceivable
that anyone sitting in the driver's seat could have survived the impact, even by
any stretch of imagination.
 t •.
J21

To a large extent, the view we hold is that the appeal is against findings of
fact which do not entitle us to interfere with the overall decision of the learned
trial Judge. On the facts, it is unavoidable to come to the conclusion that Simon
Phiri was the driver of the bus. With this finding, we agree and uphold the
decision of the learned trial Judge to dismiss the claim of the Appellant. The
appeal is accordingly dismissed with costs to the Respondent.

• ······················�······· ·· ····· · ·····

D. K. Chirwa,
SUPREME COURT JUDGE

S. S. Silomba, H. Chibomba,
SUPREME COURT JUDGE SUPREME COURT JUDGE